1. The plaintiff Bahorey Dina Nath has preferredthis appeal against the decree of the lower appellate Court which reversed the decision of the trialCourt. The plaintiff instituted the suit in appealwith the allegation that the shops of the partieswere adjacent to each other and they were dividedby a common wall of the parties and the defendant had demolished a portion of the aforesaidcommon wall as shown in the map attached tothe plaint. The plaintiff also claim damages andasked for possession of the land of the wall whichhad been encroached upon and for injunction restraining the defendant from interfering with hispossession over the disputed wall in any way. Itis admitted that the wall in dispute belongs jointlyto the parties. The width of the wall is 20 inches.It is made of old bricks, called, 'Kakaya bricks'.The question in dispute would be clear from thefollowing extracts from the judgment of the lowerappellate Court:
'The position of the disputed wall would be clear from a perusal of the site-plan (paper No. 3AI) annexed to the plaint. The plaintiff has a 5-chamber shop. To the west of it is the shop of the appellant. The middle wall between the two shops is made of 'Kakayia' bricks and it is 20 inches wide. It was in June, 1952, that the appellent demolished a portion of the wall when she started re-construction of the back portion of her shop. The disputed portion, of the wall is shown in the said plan in red colour and it is marked ABCD. At two places the appellant has introduced walls into the disputed wall and they are marked by letters EFGH and JKLM. This has been done to a depth of 10 inches each. The learned Munsif held that the appellant can introduce walls into the wall to the extent of two inches only. He did not consider the point whether the appellant's user of the disputed, wall could be regarded as reasonable.'
The lower appellate Court came to the conclusion that the defendant being a co-owner was entitled to a reasonable user of the common wall and it expressed the view that the penetration in the wall by the defendant was not unreasonable and it did not interfere with the enjoyment of the common wall by the plaintiff. It further expressed the view that the common wall was neither damaged nor weakened by the defendant.
2. The sole question for consideration is whether under the present circumstances the plaintiff is entitled to the relief claimed by him and whether the defendant was acting within her rights. Admittedly, the wall is 20 inches wide. It is not dbnied that a portion of the said wall has been scraped upto a width of 10 inches and the defendant has pushed her own constructions to that extent within the said common wall of the parties. If the appellant wanted to do the same on his side of the common wall and scraped it to the extent of 10 inches the result would be that in this process the entire common wall would disappear. Where a wall is a common wall of the parties in which they are co-owners it is necessary that the entire wall should be kept in such a condition so that it may continue to remain joint and should be enjoyed in common by the parties. It would follow that it would not be open to any party to do any act which may damage or endanger the common wall or alter or change its shape in such a way that it may cease to continue as a common wall. In the present case, the defendant, by scraping the common wall to the extent of 10 inches in width, has, in effect, diminished the width of the common wall and if this process is to be continued or is allowed to exist it would result in a part of the common wall ceasing to remain as such and the said part of the area of the common wall going to one of the parties instead of remaining tinder the common wall. The joint enjoyment of the parties to whom a common wall belongs does not mean that they are owners of the said wall to the extent of a half share. The wall is 10 feet long and 20 inches wide. It does not mean that each of the parties owns the wall to the extent of 10 inches in width. On the other hand, both the parties own the wall jointly and they are entitled to such enjoyment of the common wall which is not inconsistent with the rights of any of the co-owner. As has been mentioned above, in the present case, the very existence of the common wall had been threatened by the act of the defendant. Evidently, this cannot be permitted.
3. Learned counsel for the appellant referred to Ram Sarup v. Shambhu Dayal : AIR1930All396 , Paduman Das v. Smt. Parbati : AIR1935All649 . Kalishankar Pitamber v. Baikashi. 6 Bom LR 682, Daudkhan Musekhan v. Chandulal Kanhayalal Bhujan AIR 1923 Bom 370 and Ganpat Rai v. Sain Das, AIR 1931 Lah 373.
4. In the aforesaid cases it was emphasized that it was not open to one of the co-owners of a common wall to act in a way which may cause injury to the wall itself. It may be emphasized that the structure of a common wall has to be kept intact and it is neither open to a co-owner to substantially increase or diminish the size of the wall. The lower appellate Court, in the present case, has expressed the view that the defendant has not done any thing to weaken the common wall. It may be that the wall, as a whole, had not been weakened in a sense that a separate supporting structure has been raised by the defendant. The fact, however, remains that the defendant, by her act, has narrowed the width of the common wall from 20 inches to 10 inches and this, on the face of it, has altered the structure of the common wall, which a co-owner is not permitted to do.
5. I, therefore, set aside the decree of thelower appellate Court and restore the decree of the trial Court, The appeal is thus allowed with costs.